Lawyers’ Failure to Consider Work Product Protection Prejudices Their Clients: Part I

September 30, 2020

The attorney-client privilege and the work product doctrine differ dramatically in their age, source, scope, strength and fragility. Lawyers must always consider both. But because clients, lawyers, and even courts usually use the word “privilege” to describe both of those totally different protections, some lawyers forget the work product doctrine’s possible applicability.

In Stavale v. Stavale, No. 349472, 2020 Mich. App. LEXIS 3766, at *1-2 (Mich. Ct. App. June 11, 2020), a wife seeking divorce “issued subpoenas to [her husband’s] employer requesting emails that [her husband] had sent to his personal attorney through his employer-provided email address.” The court applied what it correctly described as the “seminal case in the federal system” addressing privilege protection for such communications: “In re Asia Global Crossing, Ltd. (322 BR 247 Bankr. SD NY, 2005).” Id. at *6. The court concluded that the company’s email policy “unambiguously provided that [the husband] had no expectation of privacy when using his employer-provided e-mail,” but remanded to the trial court to “give particular focus to whether and to what extent defendant was notified or otherwise made aware of the policy.” Id. at *18-19. The court then noted in a footnote that the defendant husband “briefly asserts, as an alternative issue at the end of his reply brief on appeal, that even to the extent the e-mails at issue are not protected by the attorney-client privilege, they are work-product that should be excluded on that ground.” Id. at *19 n.8. The court “declin[ed] to address defendant’s reliance on the work-product doctrine” — because he had not raised it in his initial pleading or in his supporting brief. Id.

The work product doctrine almost certainly would have protected emails between the husband and his personal divorce lawyer. And because the robust work product protection normally survives disclosure to friendly third parties (which do not increase the risk of the work product falling into an adversary’s hands), work product protection might well survive the Asia Global standard. Next week’s Privilege Point describes a case in which one of America’s largest corporations made the same mistake.